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STATE OF HARYANA versus BAL KISHAN & ORS

High Court of Punjab and Haryana, Chandigarh

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State of Haryana v. Bal Kishan & Ors - CRA-D-99-DBA-1997 [2006] RD-P&H 6910 (11 September 2006)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Crl. Appeal No.99-DBA of 1997.

Date of decision : September 7, 2006.

State of Haryana

.... Appellant

versus

Bal Kishan and others

... Respondents

CORAM : HON'BLE MR. JUSTICE VIRENDER SINGH
HON'BLE MR. JUSTICE A.N. JINDAL

Present : Mr. Sunil Katyal, DAG, Haryana for the appellant.

Mr. Vipan K. Bali, Advocate

for the respondents.

A.N. JINDAL, J.

The deceased Krishan Lal a taxi driver, went missing from the bus stand Karnal on January 7, 1992. Kehar Singh went in search of him at bus stand Karnal on 9.1.1992 where Gulab Singh owner of Van No.DDV-8351 informed him that four young persons in their 20s had hired the taxi of Krishan Lal for village Dhumsi, Tehsil Indri, District Karnal. Then Kehar Singh along with Maha Singh Sarpanch of village Sangohi, Tahar Singh, Kuldip Singh (owner of taxi), Sumer Chand and Gulab Singh went to the village Dhumsi prior to the lodging of the report i.e. on 13.1.1992.

However, they could not get any clue about the whereabouts of Krishan Lal. Then on 13.1.1992, on reaching village Dhumsi, they were informed by Bachant Singh that a dead body was lying in his fields under the heap of Toria crop. Consequently, they went to the fields of Bachant Singh and identified the dead body of Krishan Lal. They further raised suspicion that the four young persons who had hired the taxi had Crl. Appeal No.99-DBA of 1997.

murdered Krishan Lal.

On the basis of the aforesaid statement of Kehar Singh, FIR Ex.PS was recorded at Police Station Indri, District Karnal.

Raj Kumar Station House Officer, visited the field of Bachant Singh at village Dhumsi, conducted autopsy on the dead body as Ex.PM/1. He lifted the blood stained earth and pair of shoes from the spot and converted the same into parcel. Besides recording the statement of Kehar Singh, he also prepared the rough site plan of the place of recovery of the dead body as Ex.PW.

On 14.1.1992, HC Shiv Kumar produced parcel containing clothes of Krishan Lal i.e. jarsi Ex.P8, shirt Ex.P9, banian Ex.P10, pant Ex.P11, belt Ex.P12, kachha Ex.P13, pair of shocks Ex.P14 & Ex.P14/1, which he took into possession. He also recorded statements of the concerned witnesses and deposited the case property in the Police Station.

On 15.1.1992 he recorded statement of Chander Kumar and Ram Sarup. On 29.1.1992, he received VT message from Police Station Sadar, Karnal through which he came to know that Bal Kishan and Ramesh accused were arrested in a case under Section 457/380 IPC wherein they had made disclosure statement making confession about the present murder. On the basis of the disclosure statement, he formally arrested Bal Kishan and Ramesh accused in this case.

On 29.1.1992, he produced the accused before the Illaqa Magistrate and were offered for their identification parade but the accused refused to participate in the test identification parade. The order Ex.PJ/3 was passed by the Illaqa Magistrate in this regard.

Crl. Appeal No.99-DBA of 1997.

On 30.1.1992, he interrogated both the accused Bal Kishan and Ramesh. On interrogation of Ramesh, he got recovered a wrist watch Ex.P7 which he took into possession vide memo Ex.PX/1.

Ramesh also got recovered one knife and one jack from inside the room meant for cattle which he took into possession vide memo Ex.PY/1. He further mentioned that Jack Ex.P15 recovered from the accused Ramesh bearing letters "KK". The accused also pointed out the place where the offence was committed. On 31.1.1992 all the accused confirmed the place where the offence was committed. On 1.2.1992 Krishan and Dilshad accused on interrogation got recovered one purse Ex.P4, tape recorder Ex.P16, photograph Ex.P5 lying in the purse itself.

On the same day the accused got recovered the Loi Ex.P1 and one knife Ex.P17. The Loi was identified by Kehar Singh to be one belonging to the deceased. He recorded statement of the witnesses and on completion of the investigation challan against the accused was presented in the Court.

On finding prima facie case against the accused, they were charged under Section 302 read with Section 404 of the IPC to which they pleaded not guilty and claimed trial.

On commencement of the trial, the prosecution examined Satya (PW-1), Puran Chand Patwari (PW-2), ASI Shiv Kumar (PW-3), Kuldeep Singh (PW-4), Gulab Singh (PW-5), A.K. Tyagi Judicial Magistrate Ist Class, Karnal (PW-6), Dayal Singh Registration Clerk (PW-7), Dr. sushil Bathla (PW-8), ASI Jeet Singh (PW-9), ASI Wazir Singh (PW-10), Bachant Singh (PW-11), Ranbir Singh (PW-12), Kehar Singh (PW-13) and SI Raj Kumar (PW-14).

On closure of the prosecution evidence, the accused Crl. Appeal No.99-DBA of 1997.

were examined under Section 313 of Cr.P.C. wherein they denied their complicity in the commission of crime and pleaded their false implication in the case.

During defence, they examined Satish Bhatia Ahlmad in the court of Additional Chief Judicial Magistrate, Karnal as DW-1. He proved photo copy of the disclosure statement Ex.DX, copy of the ration card Ex.DD/1. Thereafter accused closed their defence.

We have heard Mr. Sunil Katyal, DAG, Haryana, Mr.

Vipan K. Bali, learned counsel for the respondents and perused the material on record with their able assistance.

It is a blind murder case. No witness has been cited or examined by the prosecution who had actually seen the accused committing the crime nor any witness has been examined to establish whether the accused were seen nearby the place of occurrence before or after the commission of crime. Conviction on the basis of circumstantial evidence can be ordered if the circumstances so established on the record should be of the following nature :- "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not may be' established;

(2)the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3)the circumstances should be of a conclusive nature and tendency ;

Crl. Appeal No.99-DBA of 1997.

(4)they should exclude very possible hypothesis except the one to be proved ; and

(5)there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that all human

probabilities the act must have been done by the accused."

In order to bring home the charge against the accused, the prosecution, in this case, relied upon the following pieces of evidence :-

1. Evidence of extra judicial confession made by the accused before one Ranbir Singh; and

2. Recovery of articles i.e. purse Ex.P4, wrist watch Ex.P7, jack Ex.P15 and tape recorder Ex.P16.

To our mind, both the pieces of evidence are hardly sufficient in the absence of any corroborative evidence to connect the accused with the crime.

First of all adverting to the evidence of extra judicial confession. Ranbir Singh (PW-12) had stated that the accused came to him and vomitted out the confession and they also requested him to produce them before the police. The composite confession made by the accused before the witness is of no consequence. The accused and the witness belong to different villages. The village of the accused is located at a distance of 55 kms from the village of Ranbir Singh (PW-12). None of the accused had any particular relationship with him. He was also not Crl. Appeal No.99-DBA of 1997.

holding any such official capacity so as to hold an influence over the authorities from where accused could expect any favour from him. No evidence has come to surface from where it could be visualized that accused reposed confidence in Ranbir Singh (PW-12) and vomit out the confession. If both the accused had the intention to surrender and wanted Ranbir Singh (PW-12) to produce them before the police then they themselves could go to the police and surrender themselves to the law. In any case, the evidence of extra judicial confession, unless corroborated is a very weak piece of evidence and no reliance could be placed on such evidence.

It is also surprising to note that after the commission of the crime, the accused got concealed the purse, wrist watch, jack, tape recorder and photograph and they got recovered the same in pursuance of their statements, when in all human probabilities, if a murder is committed then the accused will be the last persons to conceal such like items which are of no use to them, rather they will always be in a hurry to demolish such sort of evidence which may be used against them at any time. As such, no reliance can be placed on the articles allegedly recovered from the accused which otherwise are fully available in the market and could be foisted upon the accused without any difficulty.

The prosecution has failed to bring to the surface any motive on the part of the accused to commit the crime. Had the accused any intention to rob Krishan Lal then they would have disposed of the car (taxi) which they had snatched from him and make bounty out of it but that was not so done, they abundant the car. As such the prosecution has failed to lead any cogent and convincing circumstantial evidence Crl. Appeal No.99-DBA of 1997.

which may directly point towards the guilt of the accused.

Keeping in view the aforesaid pieces of evidence set up by the prosecution we are constrained to hold that the prosecution has led such flimsy evidence which is hardly sufficient to connect the accused with the crime. The scope of interference by this Court in the judgment of acquittal is very limited. Principles governing interference in the judgment of the acquittal by the Appellate Court has been laid down in case Bhim Singh vs. State of Haryana 2002 (10) SCC 461 by making the following observations :-

"Before concluding, we would like to point out that this Court in a number of cases has held that an appellate court entertaining an appeal from the judgment of acquittal by the trial court though entitled to re- appreciate the evidence and come to an independent conclusion, it should not do so as a matter of routine.

In other words, if from the same set of evidence two views are possible and if the trial court has taken one view on the said evidence, unless the appellate court comes to the conclusion that the view taken by the trial Court is either perverse or such that no reasonable person could come to that conclusion or that such a finding of the trial court is not based on any material on record, it should not merely because another conclusion is possible reverse the finding of the trial court."

While following the aforesaid view, the Apex Court in case Kallu @ Masih and others vs. State of Madhya Pradesh 2006 Crl. Appeal No.99-DBA of 1997.

(1) RCR (Criminal) 427 observed as under :- "While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction.

In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court." The crux having emerged from the aforesaid discussion is that the judgment of acquittal can be interfered only "(i) when view taken by the trial Court was so perverse or unreasonable, would record such a conclusion that the view taken by the trial Court was not practically reasonable;

(ii) it was based on mis-appreciation of evidence and against the fundamental principles of criminal Crl. Appeal No.99-DBA of 1997.

jurisprudence;

(iii) different view could be formed in all human probabilities appealing to the human conscience; or (iv) the view formed by the trial Court was apparently against the material placed on record which resulted in miscarriage of justice.

Having scrutinized the impugned judgment, we find no such infirmity, perversity or unreasonableness of any kind inviting our interference in the judgment passed by the trial Court. Accordingly finding no merit in the appeal, the same is hereby dismissed.

( A.N. JINDAL )

JUDGE

September 7 2006 ( VIRENDER SINGH)

'deepak' JUDGE


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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